19800828 TZHC Mwanza

- IN THE J HthH COURT OF TZANIA S— (Inthe District Registry) • AT MWANZA - (PC) CIVIL APPEAL NO0 132 OF 1979 (From the decision of the District CoUrt of Musoma District at Musoma in Civil Appeal No0 208 of 1973) SOMBAISABURA oQfloOoo6eOCO000000.oOoa.00.oO000OO..O APPELLANT v e r s u s MAGESA NYItNWIGEMA •.c.60000..o.,0000000.0000000..0000 RESONDENT JJDG M E N T MUNYERA, J. The appellant sued respondent before Zanaki Primary Court for 12 heads of cattle. The facts as found by the trial court were that the appellant proposed to marry the respondent's daughter by them still young. On 21st July, 1971 he paid bridewealth of 35 heads of cattle (12 heifèrs, 8 cows, 10 bUlls and 5 oxen — total 35). The pro]?Osa] came to nothing and no marriaqe took place. Meanwhile one of the cows died while in possession of the respondent and he returned meat and the skin to the appellant0 This reduced the number of cattle from 35 to 34 head. On 15th March, 1973, a period of about 2 years from the date of payment the respondent refunded the 34 head to the appellant. The appellant argued that it was the respondent who refused to allOw his daughter to marry him (appellant) whereas he stayed with his cattle for two years enjoying their fruits. Because of this he claimed 12 heads of cattle as being calves produced while the cattle were in possession of the respondent. The trial court unanimously, dismissed the appellant's claim on cirounds that he had no evidence which cow produced which calf, The District Court of Musoma upheld the decision of the trial court and ruled that the appellant was merely guessing and was not sure that his cows produced any calves. The appellant brought this appeal. I beg to differ with the opinion of the two lower courts0' It was not in despute that the appellant paid 35 head of cattle in 1971. Among them there were 20 females (12 heifers and 8 cows). One of the cows died and meat and skin were returned to the appellant and he accepted the situation. Thus the respondent remained with 19 females (12 heifers and 7 cows) from 21/7/71 to 15/3/73. According to the natural course of events the females must have produced calves during that period and it was up to the respondent to prove the contrary. He never said anything in that respect. A claim of 12 calves out of 19 females was quite reasonable. The other question which the courts below never considered is whether the calves were refundable0 In Ordinary transactions of bridewealth calves are never claimed. But in this case no marriage took place and cattle received by the respondent had not yet become his property. Some tribes treat transactions such as this as loans in which case calves cannot be claimed. Likewise if a cow dies in possession of the receiver he cannot return meat and skin. In this case the respondent refurned meat and skin of the cow which died in his possession. The appellant accepted the meat and skin without désputo. It therefore appears that thisisthe practice among the parties tribe (akabwa). This being the case it would be a one sided justice if the respondent was allowed to absolve himself of liability of cattle dying while in his possession at the same time to profit from the calves born. ) I e • S • ./ 2. 2 - For the above reasons I allow the appeal, set aside the decisions of th e'two lower, courts and substitute theref. an ord.r giving judrjrnnt for the appellant for twelve (12).heads of,cattle0 He will also have his costs in all three courts0 ..,... F0 4 A. MUNYERA JUDGE . V. MWhNZA 28TH AUGLT, - //